Before you proceed to court, you need to do the following:
1. Listen to the case of your client
2. Determine whether your client has a course of action.: After listening to your client’s story , you have to determine whether the acts are justifiable. See Letang v Cooper
3. If so , whom is it against: The person must be a person know at law (natural or artificial). If you bring the case against the wrong person, the case will be thrown out for want of capacity. In contract, a minor’s capacity is restricted in certain situations. In tort also , in Miller v Ag, the action was not brought by miller, a minor but by the parent on his behalf.
4. Is the matter justiciable? : You can’t go to court and pray the court for money to buy kenkey. This is an economic problem and hence not justiciable. A matter may not be justiciable because :
• A matter may not be justiciable because in the law , there is no fixed procedure for processing it, or there is no suitable rule to apply to the problem
• Again, the matter may not be justiciable because it is committed to another forum. So if eth matter is the proper function of parliament, the courts will not assume jurisdiction.
5. The next is , which court has jurisdiction in the matter?:The different jurisdictions available to the various courts are stipulated in the Courts Act and also in the 1992 Constitution. For instance, the High Court has jurisdiction in all civil and criminal matters. If you go to the wrong court, the court will decline jurisdiction. You must also know the processes also. If it is by way of summons, or otherwise.
6. Whether the action is statute Barred : The client may have a case but might have slept on his rights for too long. Unless an application for extension of time is field and granted by the court, the client cannot proceed with the case. The Limitations Decree spells out the limitation periods. Trespass is within 6 years; negligence is 3 years , action against the president is 3 years after he has left office. If the action is brought after the expiration of these periods, the action will be treated as statute Barred.
7. Evidence to be used at the trial : Without evidence , the court cannot help you. So it has to be determined as a preliminary matter because our court system is evidenced based.
Civil action began by writ may be divided into five stages :
i. From issue of writ of summons to application for directions; pre-trial hearings
ii. Trial and judgment;
iii. Execution;
iv. Appeal from Circuit Court or the High Court to the Court of Appeal
v. Appeal from Court of Appeal to the Supreme Court.
vi. Supreme Court Review
Within these stages, there are steps to be taken by the parties to the action, sometimes in turn and at times simultaneously. These we will now consider.
Stage One : Under Order 2, Rule 2 of CI 47, all civil actions otherwise declared by statue should be commenced by a writ of summons. Writ of summons is formal printed document sold in court premises but increasingly prepared in the firms. When you prepare it yourself and you go to court, it has to be signed by the CJ but when it is purchased at the court premises , it is already signed by the CJ. On the writ, you indicate yoru name, occupational and residential address of you and of the person against whom you are going to bring the action. If the writ is issued against the wrong person, they will come to court and have the writ set aside. The Rules require that you endorse your writ. What you state as your claim is your endorsement. A writ without the claim is defective because the other party must know what you want.
Step 2: Pleadings are the written statements of the parties in actions begun by writ of summons which are served by each party in turn on the other , setting forth in a summary form, the material facts on which each relies in support of his claim or defence, as the case may be. (see order 11).You are supposed to file the writ together with the statement of claim. You must state your facts in paragraphs, each paragraph containing as much as possible only one fact. If the facts that you state are contained in a document, you must plead the existence and date of that document. You are not supposed to plead the law in your statement of claim but only facts.
After the plaintiff’s statement of claim, the defendant also files his statement of defence. The statement of defence also has to be in paragraphs and must relate to the statement of claim. When the writ is filed , the defendant has 7 days from the date of notice to file the statement of defense. The defendant can here also counterclaim.
After the defendant’s response, the plaintiff files a reply. The defendant is also allowed to file a rejoinder. If another matter is raised, then the plaintiff may file a surrejoinder and it continues with the defendant filing a rebutter which may be followed the plaintiffs surrebutter.
All these exchanges are what is referred to as pleadings. Hence as could be seen , pleadings are at the heart of or civil process. Civil actions revolve around the pleadings.
What is the Importance or Role of Pleadings?
• The judge makes decision based on the pleadings
• They constitute or form the basis of the case that both parties are putting before the court and for that reason the parties are bound by their pleadings
• It also gives notice to the other party for the case against him or her
• It helps each party to prepare adequately for the case against him or her
• Because the facts are on record, they ensure that the same parties are not able to re-litigate the matter.
• Since the matters in controversy are known, there will be a speedy trial. This will help the trial to be on focus and so the judge will not allow the parties to run around.
It should be noted that though amendments are allowed, you cannot amend your pleadings so as to put forward a completely new case since the other party has prepared for the case at hand.
Pleadings close at least a month after the last step.
The importance of pleadings
This was given judicial pronouncement by Azu Crabbe JSC (as he then was) in the case of Hammond v Odoi [1982-83] GLR 1215. The learned judge echoed as follows : “Pleadings are the nucleus around which the case-the whole case-revolves. Their very nature and character thus demonstrate their importance in actions, as for the benefit of the court as well as for the parties. A trial judge can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would led. Amendment is the course to free them from such fetters. The pleadings thus manifest the true and substantive merits of the case. And the reply is very much a part of the pleadings. And in this case the party most affected did not complain.”
APPLICATION FOR DIRECTIONS: After the close of pleadings , the next step is for the plaintiff to apply for directions within one month (Order 32 r 2). If he does not do so within the prescribed time, any defendant who has entered an appearance may take out the summons or apply to dismiss the action for want of persecution (Order 32 r 3). At the application for directions, the plaintiff must file what the issues for trail may be. The defendant will also be allowed to file additional issues if there is the need. The plaintiff must also indicate the number of days and witnesses to be called. AT the summon of directions, the judge fix the date for the parties to appear before him.
Stage 3: This is the evidence stage. First, is the Evidence in Chief. Here the plaintiff tells his story. Counsel takes him through the story and providing evidence to support facts. Your lawyer cannot ask you leading questions.
Cross Examination: You will be cross-examined on the story by the other side if they want to and the decision to do so is a professional decision. Leading questions are allowed in cross examination. Cross examination can be used to put accross their story and also test your credibility.
Re-Examination: This comes after cross-examination. It is an opportunity for your lawyer to correct your answers which appear misleading or ambiguous. After this, the parties address the court. It can be in writing or can be oral. Address is your chance to attract potential clients. It should be noted that the fact that you have initiated a civil action does not mean that you should continue it. You can discontinue at any time before judgment.
Stage 4 : Execution of Judgment. When judgment is given you have to enter judgment. This is what Kom describes as harvesting the fruits of your success. You do this by filing an entry of judgment. As Kom puts it, the method of execution will depend on the nature of the relief sought and granted in the judgment. If you do not enter judgment within the stipulated time in the rules, you cannot enforce the judgment.
A judgment or order of payment of money, not being a judgment or order for the payment of money into court, may be enforced by one or more of the following menas (See order 47 r 1):
• Writ of fieri facias (fi.fa.)
• Garnishee Order : If it is known to the judgment creditor that a third party (“the garnishee”) has money due to the judgment debtor, he can apply by an ex parte motion, supported by an affidavit, to the court for an order nisi. The order nisi may order the garnishee to appear before the court on an appointed day to show cause why he should not pay to the judgment creditor the money due from him to the judgment debtor or so much of it as will satisfy the judgment debt together with costs (order 47 r 1). On the appointed day, if the garnishee does not dispute the debt due or claimed to be due, or fails to appear, the court may make the order nisi absolute against the garnishee. However, if the garnishee disputes his liability the court may summarily determine the question in issue or order that any question be tried and determined. IF the garnishee asserts that some other person other than the judgment debtor is or claims to be entitled to the debt sought to be attached or has claims to have a charge or lien on it, the court may order that other person to attend and stat the nature and particulars of his claim. Any payment made by the garnishee in compliance with an order absolute is a valid discharge of the liability of the garnishee to the judgment debtor to the extent of the amount paid or levied, notwithstanding that the garnishee proceedings are subsequently set aside or the judgment or order form which it arose are reversed.
• Charging Order, or stop order: The court may for the purpose of enforcing a judgment or order for the payment of money order the imposing of a charge on any immovable property of the judgment debtor to secure the payment of any money due or to become due under the judgment or order as may be specified in the order. The order is initially given as an order nisi to enable the judgment to show cause why the order should not be made absolute. If the court on further consideration of the matter determines that there is a sufficient reason to justify the making of the order absolute, it may so determine. The application for the order may be made ex parte supported by an affidavit.
• Appointment of receiver: An order for the payment of money into court may be enforced by the appointment of a receiver. A receive may also be appointed to enforce a charge imposed on immovable property of the judgment debtor.
• Committal (Summons to show cause)
• Sequestration: A writ of sequestration may be issued against the estate and effects of the delinquent judgment debtor. The writ is a commission directed to two or more persons called “commissioners” appointed by the court empowering them to enter upon any immovable property of the person against whom the writ has been issued and to collect, take and obtain not only the rents and profits of the property , but also all the person’s goods and movable property, and detain them under sequestration in their hands until the person is cleared of contempt of court.
Stage 5 : Appeals: If the unsuccessful party has not accepted his faith an appeal continues. In the notice of appeal , the appellant must state :
• The judgment against which he is appealing against
• The grounds of appeal
• The relief(s) sought
• The person or persons to be affected by the appeal
An appeal from the court of appeal lies to the Supreme Court. If you are not satisfied with the decision of the SC, you can apply for a review. The review jurisdiction only works in exceptional cases. In review, two more judges will be added to the original panel.